How Divorcing Couples Should Handle Custody of Pets

Many people consider their pet a part of the family, which is why disputes over pet ownership are such a common issue among divorcing couples. State courts don’t address pets by statute, which further complicates the issue.

The legal battles involving pets can be a significant emotional investment with an uncertain outcome that can end up costing thousands of dollars. According to the latest National Pet Owner Survey, sixty-three percent — 71.1 million — of U.S. households own pets. The bulk of those animals are dogs — about 44 million. Americans are expected to spend about $41 billion on their pets this year, a $24 billion increase since 1994, according to the American Pet Products Manufacturers Association. Many people consider pets beloved companions, and divorce can be complicated regarding custody.

When it comes to your pet, keep the following things in mind.

What the Courts Say

If you divorce by a marital settlement agreement with your spouse, rather than by trial,many states will allow you to address almost anything of concern in the document. You can make decisions regarding your pet, including who keeps it, who gets visitation, and who is going to pay for veterinary care and other related expenses. However, your agreement may not be enforceable if one of you decides later to not abide by its terms. Marital settlement agreements are contracts, and they’re enforceable as such in civil court – unless you or your attorney merge it, rather than incorporate it, into your final divorce decree. If your agreement is merged, this gives family court ongoing jurisdiction over it in some states, and some family courts will not enforce issues regarding animals. If your agreement is incorporated, you can usually enforce it as a contract outside of family court.

Pets as Property

When family courts do get involved in disputes concerning pets, they tend to treat the animals as property, not loved companions. If you and your spouse can’t agree regarding your animal, and if you ask the court to rule on the issue, the judge will probably place a dollar value on your pet as a marital asset. The asset would then be assigned to you or your spouse, and the other might receive another asset of equal value. If the court does order visitation, the provision may not be enforceable later because a divorce decree ordered by a judge falls under the jurisdiction of family – not civil – court. In 2003, a court in Delaware refused to sign off on a marital settlement agreement because it addressed pet visitation and the court felt it had no authority to enforce such terms later in the event of a conflict.

Custody of Pets Factors

Some courts are trying to move forward with legislation to treat animals as family members, not property. This forces judges to consider some of the same issues that are involved in child custody when placing a pet with one spouse or the other. Factors on which judges have based decisions include the cruelty of separating children from their pet at an already traumatic time in their lives, which spouse typically cared for the animal, or if one spouse brought the pet into the marriage. A judge could also consider the couple’s past relationships with other animals and if those relationships involved any degree of neglect or cruelty.

Other Considerations

Although many states have been slow to adopt family law legislation to address animals, some states have taken steps to provide for them when domestic violence is involved. For example, California, Illinois, Maine, New Jersey and New York have all passed laws to include family pets in domestic violence restraining orders, either ordering the abusive spouse to stay away from the pet or imposing criminal penalties should the abusive spouse harm the animal in the process of a domestic incident.

How Divorce Can Affect Your Pet

Divorce can be painful for everyone, especially your pet. If your pet’s behavior changes —such as becoming lethargic, sleeping more, eating less, scratching constantly, or losing interest in activities they may be under a lot of stress.

Signs of Pet Stress

• They become depressed.• They sleep a lot.• Their appetite lessens.• They’re not interested in their walks or other daily activities.• They start to cry or whimper.• They groom, lick, and/or bite themselves excessively.• They have accidents in the home.

Helping Pets Cope with Divorce

• Decide what’s best for your pet. Put aside your feelings to reach that decision.
Consider such factors as who fed and cared for them before the divorce and who can
afford to pay for their veterinary care, food, and other expenses.
• Typically, the pet goes where the children go. That usually means staying in
the family home where the surroundings are familiar.
• If there’s more than one pet, try to keep them together. Separating them may not be in
their best interest.• Spend time with your pets. Play with them.
• Take your pet to the veterinarian. You must make sure it is well physically.